Regional Municipality of Niagara, Ontario
· adopted 2022-05-19
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Bill No. 2022-35
Authorization Reference: PHSSC 5-2022;
Minute Item 5.1
THE REGIONAL MUNICIPALITY OF NIAGARA
BY-LAW NO. 2022-35
A BY-LAW TO REGULATE WATER PIPE SMOKING IN THE
REGIONAL MUNICIPALITY OF NIAGARA
WHEREAS, water pipe smoking has been associated with various disease and poor
health outcomes, including lung cancer, negative pregnancy outcomes, poor oral health,
dental disease, respiratory illness and impaired lung function linked to tobacco water
pipe formulations, and carbon monoxide exposure and reduced lung capacity linked to
non-tobacco formulations;
WHEREAS, water pipe smoking, in general, negatively affects indoor air quality for
indicators including carbon monoxide and particulate matter, which are closely related
to potential impacts on human health;
WHEREAS, subsection 11(2) of the Municipal Act, 2001, S.O. 2001, c. 25, provides that
upper tier municipalities have the authority to pass by-laws respecting the health, safety
and well-being of persons;
WHEREAS, subsection 115(1) of the Municipal Act, 2001, S.O. 2001, c. 25 provides
that a municipality may prohibit or regulate the smoking of tobacco in public places and
workplaces; and
WHEREAS, it is desirable for the health, safety and well-being of the inhabitants of
Niagara Region to prohibit the use of water pipes in enclosed public places, enclosed
workplaces, and other specified areas within Niagara Region to protect individuals from
conditions hazardous to human health.
NOW THEREFORE, the Council of the Regional Corporation enacts as follows:
DEFINITIONS
1.
In this By-law:
"Employee" means a person who performs any work for, or supplies any service to, an
employer, or a person who receives any instruction or training in the activity, business,
work, trade, occupation or profession of an employer.
"Employer" includes an owner, operator, proprietor, manager, superintendent, overseer,
receiver or trustee of an activity, business, work, trade, occupation, profession, project
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Bill No. 2022-35
Authorization Reference: PHSSC 5-2022;
Minute Item 5.1
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or undertaking who has control or direction of, or is directly or indirectly responsible for,
the employment of a person in it.
"Enclosed Public Place" means the inside of any place, building or structure, or vehicle
or conveyance or a part of any of them:
(a)
that is covered by a roof; and
(b)
to which the public is ordinarily invited or permitted access, either
expressly or by implication, whether or not a fee is charged for entry.
"Enclosed Workplace" means the inside of any place, building or structure or vehicle or
conveyance or a part of any of them:
(a)
that is covered by a roof; and
(b)
that employees work in or frequent during the course of their employment
whether or not they are acting in the course of their employment at the
time.
"Highway" means a highway as defined in the Municipal Act, 2001, S.O. 2001, c. 25.
"Medical Officer of Health" means the Medical Officer of Health for The Regional
Municipality of Niagara, duly appointed under the Heath Protection and Promotion Act,
R.S.O. 1990, c. H.7, as amended.
"Officer" means a Provincial Offences Officer acting under the direction of the Medical
Officer of Health;
"Order" has the meaning set forth in section 11 of this By-law.
"Person" means an individual or a corporation;
"Playground" means an area where the public is ordinarily invited or permitted access,
either expressly or by implication, whether or not a fee is charged for entry, that is
primarily used for the purposes of children's recreation, and is equipped with children's
play equipment including but not limited to slides, swings, climbing apparatuses, splash
pads, wading pools, or sand boxes.
"Proprietor" means the person, governing body or agency which controls, governs or
directs activity carried on within an Enclosed Public Place, Enclosed Workplace, or
other area specified by this By-law and includes the person who is actually in charge
thereof;
Bill No. 2022-35
Authorization Reference: PHSSC 5-2022;
Minute Item 5.1
Page 3 of 8
"Patio" means an area where the public is ordinarily invited or permitted access, either
expressly or by implication, whether or not a fee is charged for entry, or that is worked in
or frequented by employees during the course of their employment, whether or not they
are acting in the course of their employment at the time, and where food or drink is
served or sold or offered for consumption, or that is part of or operated in conjunction
with an area where food or drink is served or sold or offered.
"Property Owner" means a Person with a legal or beneficial ownership of a building or
other structure that contains an Enclosed Public Place or an Enclosed Workplace
operated either directly by the Property Owner or indirectly by a tenant, licensee or
other Person operating in the building or structure with the permission of that Property
Owner and includes:
(a)
the registered owner on title of the property;
(b)
the person, for the time being, managing or receiving the rent of the land
or premises in connection with which the word is used, whether on the
person's own account or as agent or trustee of any other person, or who
would receive the rent if the land and premises were let; and
(c)
the lessee or occupant of the property.
"Public Place" means:
(a)
any property owned, leased, or controlled by Niagara Region or any area
municipality, including without limitation parks, playgrounds, sports or
playing fields, recreational trails, beaches, arenas, recreational centers,
community meeting areas, special events, farmers markets, bus shelters,
splash pads, and pools;
(b)
any outdoor area within a nine-metre radius of an entrance to or exit from
a building located at any property owned, leased or controlled by Niagara
Region or any area municipality; and
(c)
any outdoor area that is within a nine-metre radius of an entrance to or
exit from a public building or building generally accessible to the public,
whether or not the building is leased, or controlled by Niagara Region or
any area municipality, including places of employment, condominium
buildings, apartment buildings and other similar residential buildings.
"Roof" means a physical barrier of any size, whether temporary or permanent, that
covers an area or place or any part of an area or place, and that is capable of excluding
rain or impeding airflow, or both.
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Authorization Reference: PHSSC 5-2022;
Minute Item 5.1
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"School" means the lands or premises included in the definition of a school under the
Education Act, R.S.O. 1990, c. E.2 or the building or the grounds surrounding the
building of a private school as defined in the Education Act, where the private school is
the sole occupant of the premises, or the grounds annexed to a private school as
defined in the Education Act, where the private school is not the sole occupant of the
premises.
"Spectator Area" means an area with tiered seating or benches.
"Smoke" or "Smoking" includes the use or carrying of any lighted or activated or heated
Water pipe as well as the fumes or byproducts of heating or combustion associated with
Water pipe use.
"Sporting Area" means an area where the public is ordinarily invited or permitted
access, either expressly or by implication, whether or not a fee is charged for entry,
used primarily for the purposes of sports including, but without being limited to soccer,
football, basketball, tennis, baseball, softball, cricket, skating, beach volleyball, running,
swimming, or skateboarding.
"Water pipe" means any activated, lighted or heated smoking equipment used to burn or
heat tobacco or a non-tobacco substance or a combination thereof, with which the
vapor or smoke may be passed through a water basin before inhalation.
PROHIBITIONS
2.
No person shall Smoke a Water pipe in:
(a)
an Enclosed Public Place;
(b)
an Enclosed Workplace;
(c)
a Patio;
(d)
a Playground;
(e)
a Public Place;
(f)
a Sporting Area;
(g)
a Spectator Area adjacent to a Sporting Area;
(h)
a School; or
Bill No. 2022-35
Authorization Reference: PHSSC 5-2022;
Minute Item 5.1
Page 5 of 8
(i)
any area that is within 9 metres of any point on the perimeter of a Public
Place, Playground, Sporting Area or Spectator Area adjacent to a Sporting
Area.
3.
The prohibitions in this By-law shall apply whether or not a notice is posted that
Water pipe Smoking is prohibited.
4.
No Person shall provide or supply a Water pipe for use in an area where
Smoking a Water pipe is prohibited by this By-law.
5.
No Proprietor, Employer, or Employee shall encourage, entice, cause or permit
the Smoking of a Water pipe within an Enclosed Public Place, Enclosed
Workplace, or Restaurant or Patio or Sporting Area or Spectator Area.
6.
No Property Owner, shall cause or permit use of a building or other structure that
contains an Enclosed Public Place or an Enclosed Workplace building in which
that Property Owner has a legal or beneficial interest to be used.
EXEMPTIONS
7.
This By-law does not apply to a Highway including a pedestrian sidewalk
adjacent to a Highway, but does apply to public transportation vehicles and
taxicabs on a Highway.
8.
This By-law does not apply to the portion of a premises used primarily as a
private dwelling.
ENFORCEMENT
9.
Where any Person contravenes any provision of this By-law, an Officer may
direct such Person to comply with this By-law. Every Person so directed shall
comply with such direction without delay.
10.
Where an Officer has reasonable grounds to believe that an offence has been
committed by a Person, the Officer may require the name, address, and proof of
identity of that Person, and the Person shall supply the required information.
11.
In the event the Medical Officer of Health is satisfied that a contravention of this
By-law has occurred, Niagara Region may make an order, as authorized by
section 444(1) of the Municipal Act, 2001 S.O. 2001 c25 (as amended or
replaced from time to time) requiring the person who contravened the By-law or
who caused or permitted the contravention or the Property Owner of the land on
which the contravention occurred to discontinue the contravening activity and the
Bill No. 2022-35
Authorization Reference: PHSSC 5-2022;
Minute Item 5.1
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Medical Officer of Health is by this By-law, delegated authority to issue such
Orders.
INSPECTIONS
12.
An Officer may enter and inspect all buildings, structures or parts thereof that are
subject to this By-law at any reasonable time for the purposes of determining
whether there is compliance with this By-law.
13.
For the purposes of an inspection under this By-law, an Officer may:
(a)
require the production for inspection of documents or things relevant to the
inspection;
(b)
inspect and remove documents or things relevant to the inspection for the
purpose of making copies or extracts;
(c)
require information from any person concerning a matter related to the
inspection; and
(d)
alone or in conjunction with a person possessing special or expert
knowledge, make examinations or take tests, samples or photographs
necessary for the purposes of the inspection.
14.
In the event the Medical Officer of Health determines that it would be beneficial
for the enforcement of the requirements of this By-law, Niagara Region shall
have all be entitled to:
(a)
seek a search warrant pursuant to section 439 of the Municipal Act, 2001
S.O. 2001 c. 25 (as amended or replaced from time to time); and
(b)
apply to restrain any breach or continuing breach of the By-law pursuant
to section 440 of the Municipal Act, 2001 S.O. 2001 c. 25 (as amended or
replaced from time to time).
OBSTRUCTION
15.
No Person shall hinder or obstruct, or attempt to hinder or obstruct, an Officer
lawfully carrying out a power, duty or direction under this By-law.
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Authorization Reference: PHSSC 5-2022;
Minute Item 5.1
Page 7 of 8
OFFENCES
16.
Every Person other than a corporation who contravenes any provision of this By-
law, is guilty of an offence and on conviction is liable, for every day or part
thereof upon which such offence occurs or continues, to a fine of not more than
$10,000 for a first offence; and not more than $25,000 for any subsequent
conviction.
17.
Every Person other than a corporation who fails to promptly comply with an
Order issued pursuant to section 11 of this By-law, is guilty of an offence and on
conviction is liable, for every day or part thereof upon which such offence occurs
or continues, to a fine of not more than $10,000 for a first offence; and not more
than $25,000 for any subsequent conviction.
18.
Every corporation which contravenes any provision of this By-law, is guilty of an
offence and on conviction is liable, for every day or part thereof upon which such
offence occurs or continues, to a fine of not more than $50,000 for a first offence
and not more than $100,000 for any subsequent conviction.
19.
Every corporation which fails to promptly comply with an Order issued pursuant
to section 11 of this By-law, is guilty of an offence and on conviction is liable, for
every day or part thereof upon which such offence occurs or continues, to a fine
of not more than $50,000 for a first offence and not more than $100,000 for any
subsequent conviction.
20.
Without limiting any other section of this By-law, every Person who contravenes
any provision of this By-law is guilty of an offence and on conviction is liable to a
fine in accordance with the Provincial Offences Act, R.S.O. 1990, c. P.33.
21.
Without limiting any other section of this By-law, every Person who fails to
promptly comply with an Order issued pursuant to section 11 of this By-law is
guilty of an offence and on conviction is liable to a fine in accordance with the
Provincial Offences Act, R.S.O. 1990, c. P.33.
22.
If any Person is in contravention of any provision of this By-law, and the
contravention has not been corrected, the contravention of the provision shall be
deemed to be a continuing offence for each day or part of a day that the
contravention remains uncorrected.
23.
For the purposes of this By-law, subsequent conviction means a conviction for an
offence which occurs after the date of conviction for an earlier offence under this
By-law.
Bill No. 2022-35
Authorization Reference: PHSSC 5-2022;
Minute Item 5.1
Page 8 of 8
24.
Where any Person contravenes any provision of this By-law, such person shall
be responsible for all costs incurred by the Region directly related to the
contravention.
SEVERABILITY
25.
If any section or sections of this By-law, or parts thereof are found by any court of
competent jurisdiction to be illegal or beyond the power of Regional Council to
enact, such section or sections or parts thereof shall be deemed to be severable
from this By-law and all remaining sections or parts of this By-law shall be
deemed to be separate and independent therefrom and to be properly enacted
and to be of full force and effect.
CONFLICT
26.
In the event of a conflict between any provision of this By-law and any applicable
Act or regulation, the provision that is the most restrictive prevails.
EFFECTIVE DATE
27.
This By-law shall come into force and take effect on January 1, 2023, provided
that the conditions in subsection 115(5) of the Municipal Act, 2001, S.O. 2001, c.
25 have been satisfied.
SHORT TITLE
28.
The short title of this By-law is the "Niagara Region Water Pipe Smoking By-law".
THE REGIONAL MUNICIPALITY OF NIAGARA
______________________________________
James Bradley, Regional Chair
______________________________________
Ann-Marie Norio, Regional Clerk
Passed: May 19, 2022